The case was born out of a dispute between Potomac Shores, a corporation that owns land along the Potomac River in Maryland, and rafting companies that run river tours out of an area near Harpers Ferry in West Virginia, where the three states meet. Potomac Shores claimed it also owned a foot strip of land that emerged on the southern side of the Potomac River bank because the river had changed course and exposed the once-submerged area.
The site, known as Potomac Wayside, was where the rafting companies ended their tours and rafters exited the river, walking overland to busses that then ferried them back upstream. Bailey said. The companies refused to pay up, and in Potomac Shores filed a lawsuit. Bradford Webb, attorney for Potomac Shores, said neither he nor his client would comment on the case.
He declined to say whether the company plans to appeal the ruling. Land disputes are a common source of friction between states, with some dating back hundreds of years. The Supreme Court holds the authority to rule on state boundary disputes, though in cases that involve disagreements raised by private parties, local courts may exercise jurisdiction.
Border quarrels involving Maryland and Virginia date back to the time they were British colonies, with King Charles I granting the Potomac River to Maryland in and setting the stage for centuries of squabbles over access rights. The majority based its decision on its interpretation of key provisions of two historical documents. For nine years the states quarreled over navigational and jurisdictional issues. In , at the urging of George Washington, the states agreed to a binding compact.
Of particular moment in the present case is Article Seventh of the compact, which provides. The citizens of each state respectively shall have full property in the shores of Potowmack [sic] river adjoining their lands, with all emoluments and advantages thereunto belonging, and the privilege of making and carrying out wharves and other improvements, so as not to obstruct or injure the navigation of the river.
The compact did not, however, settle the issue of the exact location of the boundary between the states. Ninety-two years would pass before binding arbitration awarded ownership of the bed of the Potomac to Maryland by establishing the boundary at the low-water mark on the Virginia shore.
Article Fourth of the award is the second key provision interpreted by the Court in the present case. Article Fourth of the award states.
Virginia is entitled not only to full dominion over the soil to low-water mark on the south shore of the Potomac, but has a right to such use of the river beyond the line of low-water mark as may be necessary to the full enjoyment of her riparian ownership, without impeding the navigation or otherwise interfering with the proper use of it by Maryland, agreeably to the compact of seventeen hundred and eighty-five.
The Modern Conflict Maryland instituted a permitting program for waterway construction and water withdrawal on the Potomac in Over the years, starting in , Maryland issued many of these permits to various Virginia entities without objection. Maryland officials believed granting the permit would be detrimental to their state by encouraging sprawl in Virginia, and claimed that FCWA had not adequately demonstrated need for the project.
The opposite inference is just as permissible. Until today, the competent authorities to whom Maryland and Virginia submitted their dispute have been clear and unanimous on this point: As of , the year before the Compact, the Governor of Virginia could not enter the waters of the Potomac to cool himself by virtue of any title Virginia then had to the riverbed.
Title to the whole River, and its bed, was in Maryland. First, in , the parties agreed, with later congressional approval, that Maryland had clear title to the whole River dating from See Black-Jenkins Opinion , App. D—9 hereinafter App. Then, as if this determination were not enough, this Court independently reviewed the question in The Court, too, reached the conclusion that Maryland had clear title to the whole River dating from United States , U.
And the Court confirmed this determination in Thus, unless prescription had been worked by some previous conduct to give Virginia at least some limited rights, in Maryland had clear title to the whole River, as much as in In , therefore, under the law, Virginia had little more than a land border between it and Maryland in the area here under consideration; Virginia did not have a river border since the River was not its own. See United States v.
Cherokee Nation of Okla. The case, therefore, turns on these two documents: the Compact between the two States and their arbitrated award Black-Jenkins Award or Award. Via the Compact, Article Seventh, both States promised the other rights to use the River that presuppose neither could exclude the other from the River.
Thus, in effect, they gave one another assurances of River access in exchange for the identical, reciprocal pledge. The terms by which the parties promised River access to one another became relevant, as one would expect from a hedging agreement, after occurrence of the development the parties hedged against.
By its clear language, Article Seventh creates a right for citizen landowners to have some access to the River territory by, for example, the construction of improvements appurtenant to the shore.
For example, as the majority agrees, Articles Fourth, Eighth, and Ninth of the Compact all contain express and particular police power abrogations. See ante , at 8—9. So does Article Tenth. Article Seventh, however, stands in clear contrast to these provisions. See Massachusetts v. In effect, it forces the Court to inquire whether any particular regulation amounts instead to an exclusion prohibited by the Compact.
That the Compact forces this determination, parallel to that at issue in a case of an overburdened easement, is no reason to deny its plain language or the accepted proposition that Maryland has long had title to the River and its bed.
See ante , at In relevant part, the Award states:. Virginia is entitled not only to full dominion over the soil to low-water mark on the south shore of the Potomac, but has a right to such use of the river beyond the line of low-water mark as may be necessary to the full enjoyment of her riparian ownership, without impeding the navigation or otherwise interfering with the proper use of it by Maryland, agreeably to the compact of seventeen hundred and eighty-five.
That reading cannot be right for two reasons. First, the evident design of Paragraph Fourth is to acknowledge a Virginia access right parallel to that of its own citizens who were riparian landowners. Paragraph Fourth sets out two recitations, and they are in contradistinction.
This is unlimited. What comes next is not. As to the rights beyond this full dominion, that is to say beyond the low water line, Virginia has only the rights of a riparian owner. Second, Black-Jenkins states that the limited rights Virginia has, the Commonwealth achieved by prescription.
Taking all together, we consider it established that Virginia has a proprietory right on the south shore to low water-mark, and, appurtenant thereto, has a privilege to erect any structures connected with the shore which may be necessary to the full enjoyment of her riparian ownership, and which shall not impede the free navigation or other common use of the river as a public highway.
The Commonwealth can do no more than assert those rights granted to landowners by Article Seventh. See ante, at A factor in any test can be a necessary though not sufficient element. See App. The inquiry into acquiescence i. It fails to explain, however, what other rights Black-Jenkins identified other than those achieved by the prescription discussed above. See ante , at 17, n.
That suggestion cannot be right, however. The doctrine on which the majority relies pertains to interstate bodies of water. As explained above, the Potomac River belongs to Maryland and so is not an interstate body of water. Those cases in which we have considered the common-law rights of sovereigns who either both had title to half of a river, or who both had full title to a river but at different points in its flow, such as Colorado , are inapposite to this unique, sole-title context.
The awkwardness of asking whether a regulation by Maryland amounts to exclusion is heightened here, where Virginia, as a riparian landowner, asserts its right to have access to the River for the purpose of serving needs well beyond recognized riparian use.
This, in turn, raises the question whether Maryland can decide Virginia has too much population, and on that ground deny Virginia access for the purpose of meeting water demands. This, to be sure, is a question of considerable difficulty, for it is not our law or our constitutional system to allow one State to regulate transactions occurring in another or to project its legislative power beyond its own borders. See Baldwin v. Seelig, Inc. And, nothing in the Compact gives Maryland the power to regulate the Commonwealth of Virginia as most States can regulate their own riparian landowners; specifically, Paragraph Fourth of the Award like Article Seventh of the Compact prohibits Maryland from excluding Virginia from the River.
These considerations counsel careful deliberation before deciding whether Maryland regulation amounts to an exclusion in light of the particular riparian use at issue. That is the question that Virginia should have submitted to the Special Master. Its ruling denies the force of the historical documents at issue. It has no logical basis either, unless the majority also makes the silent assumption that Virginia is constrained by some principle of reasonableness.
See ante , at 5. History shows the framework can be workable. Here, however, the Commonwealth did not ask the Special Master, as it should have, to consider whether, given the nature of the riparian rights at issue, see ante , at 2—3 Stevens, J. For these reasons, with respect, I dissent. The basic facts that should control the disposition of this case are not in dispute. Virtually the entire river is located within Maryland.
In my opinion—an opinion apparently shared by the responsible Virginia and Maryland officials in the years between and , see ante , at 5, 17—the common law provides a straightforward answer to that question. Potts , Va. It necessarily follows, I believe, that such a use may only be made with the consent of the sovereign that owns the river. That sovereign is, indisputably, the State of Maryland.
We need go no further. Rather, the narrow issue before us is whether Maryland may impose any limits on withdrawals by Virginia landowners whose property happens to abut the Potomac. Please help us improve our site! No thank you.
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